The Gazette 1964/67

from a client for his own negligence when dealing with another client of his, and accordingly the claim against the third party was dismissed. Judgment on the issue of negligence was given against the solicitor. (Attard v. Samson, Poister, Third Party. The Times newspaper, 23rd March 1966). STATUTORY NOTICE TO CREDITORS (22 and 23 VICT. C.35 S.29) Stuart v. Babington (1891) 27 L.R.I. 551 In considering the question of sufficiency of notice regard is had to the place of residence of the deceased and his position in life. In 1891 the Court practice was to direct publication "in two local papers, never less, and in one paper having a general circulation" (see above report at p. 557). Since the 1920s the examiner's practice has been to direct publication in one local paper and one national paper, twice in each, allowing about one month from the first publication to send in claims. That, of course, is a general practice subject to variation either way. Because of extended commer cial activity publication may be necessary in Eng lish or continental papers. On the other hand publication may be curtailed, e.g. a deceased small farmer in Glenmalure Valley dead over six years —one publication in Wicklow People or Indepen dent or Press (but not Times) might suffice. The Schedule of Assets is used as a rough guide. Because of its limited circulation the examiner never directs publication Iris Oifigiuil. The cost of publication cannot be used as a factor. If cost has gone up so has the value of assets. This argument was used, unsuccessfully, by auctioneers seeking a higher percentage on sales of properties. The Statutory Notice is for the pro tection of personal representatives. Accordingly they should, after perusal of the deceased's papers and accounts (if any), decided the scope of pub lication—if it is reasonable the Court will, no doubt, uphold them. If an estate is being administered in Court the assets (often the liabilities too) must be substantial and also the status of the deceased—publication is measured accordingly. In administration outside the Court—particu larly in rural areas with limited assets and liabil ities—the personal representative should not con sider himself bound too rigidly by the Court practice. In general such publication should be less than the general rule in Court—it is all a question of what is reasonable notice and to give a yardstick on that would be impossible. 107

Thorn v. University of London (Times news paper, 18th March 1966). Acting for both Parties/Professional Negligence An action, claiming damages for professional negligence was brought by the purchaser of a lease-hold interest against a solicitor who acted for vendor and purchaser. After discussing the proposed transaction with the vendor and leaving a deposit of £100 with him, the plaintiff had an interview with the defen dant and told him that he was anxious to get into the premises immediately to complete some re pairs. The defendant, in the presence of the plaintiff, phoned the vendor and upon the latter's instruc tions informed the plaintiff that he was free to take possession on payment of £100 balance and £38 costs. The plaintiff paid the sum requested, entered into possession and spent about £1,000 on repairs. No contract had been signed and the defendant was then told by the vendor that he did not wish to proceed with the transaction. The plaintiff's case against the defendant was that he was negligent in not warning him of the risks he took when he started the repairs before ensuring that there was a signed contract, and in failing to obtain from the vendor his signature to a contract at once. The defendant replied that the plaintiff ought to have mitigated his damages specifically by bringing an action for specific performance against the vendor, on which he was bound to succeed. The defendant further stated that he had ad vised the plaintiff as to his rights in the matter but the Court did not accept this evidence. Under the circumstances the Court held that it was the plaintiff's duty to mitigate his damages and to act reasonably in doing so, but it had been said that the standard of reasonableness was not high. The plaintiff in this case could not be held to blame because as soon as he could he took his affairs out of the defendant's hands and instruc ted other solicitors and thereafter proceeded to act on their advice. The defendant claimed indemnity against the vendor as third party, but the Court found that no instructions as to permission to the plaintiff to take possession and do repairs were given by the vendor to the defendant. Further it was difficult to see how the defendant could claim indemnity